forthcoming scholarship

Human rights law does not appear to enjoy as high a level of compliance as the laws of war, yet is institutionalized to a greater degree. This paper argues that the reason for this difference is related to the strategic structure of international law. The laws of war are governed by a regime of reciprocity, which can produce self-enforcing patterns of behavior, whereas the human rights regime attempts to produce public goods and is thus subject to collective action problems. The more elaborate human rights institutions are designed to overcome these problems but fall prey to second-order collective action problems. The simple laws of war institutions have been successful because they can exploit the logic of reciprocity. The paper also suggests that limits on military reprisals are in tension with self-enforcement of the laws of war. The U.S. conflict with Al Qaeda is discussed.

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and contends that much of the current mischief in administrative search law can be traced to the Supreme Court’s conflation of two distinct types of searches within one doctrinal exception – namely “dragnet searches” of every person, place, or thing in a given area or involved in a particular activity and “special subpopulation searches” of individuals deemed to have reduced expectations of privacy. Dragnets came first, and special subpopulation searches came later. As the category of administrative searches tried to accommodate both kinds of searches, it gradually lost the ability to impose meaningful limitations on either one. To bring clarity and sense to this area of the law, this Article proposes that we disentangle these two kinds of administrative searches.

This Article answers a fundamental question in U.S. counter-terrorism policy: when should a victim of a terrorist attack abroad be able to sue under U.S. laws in U.S. courts? The current principles limiting the extraterritorial application of law fail to adequately reflect the interest a state may have in applying its own law to unconventional national security threats that occur abroad. The three most relevant bases under international law for the extraterritorial application of U.S. anti-terrorism law abroad – passive personality, universal jurisdiction, and protective jurisdiction – fail to tie the application of U.S. law to U.S. security interests. Passive personality, the principle that a state can regulate conduct that injures its nationals, allows victims to sue under U.S. law even if there is little connection to the terrorist act and the United States. The only connection may be that a U.S. national was an unintended victim. Another basis, universal jurisdiction, does not allow regulation of terrorist attacks because there does not exist a general anti-terrorism norm under international law. The last basis, protective jurisdiction, also cannot apply because it only allows regulation of attacks against governmental targets, while most terrorist attacks will target civilians. Instead of attempting to organize civil anti-terrorism law around passive personality, as currently done, the U.S. should propose the creation of a new basis for the extraterritorial application of law that addresses unconventional security threats.

Domestic civil anti-terrorism laws should be reformed to apply to any terrorist attack abroad where the terrorists intended to harm a U.S. national, because of their U.S. nationality. This new basis, “intent based national security jurisdiction,” derives from three principles: security, legality and practicality. The new basis furthers the goal of security because victims, even non-U.S. nationals, will be incentivized to investigate the motives of terrorists toward the U.S. and its nationals. It will further the goal of legality because it derives from the current bases under international law and will be more acceptable to other countries than the use of passive personality. It will be more practical because the element of intent acts as an easily identifiable proxy for a U.S. interest. This will discourage judges from dismissing anti-terrorism suits through various procedural mechanisms due to the lack of an identified U.S. interest in allowing the suit to proceed.

Just as the last century saw a fundamental shift in our criminal laws and available defenses due to the advent of “vice” laws (drugs, alcohol prohibition, the Mann Act, Comstock Laws) and the contemporaneous federalization of criminal law, this paper argues that we are witnessing the advent of a new phase in which the national security emphasis permeates our entire criminal law framework. The national security paradigm is affecting our underlying assumptions about the nature of culpability and the goals of law enforcement; the way in which we draft and interpret penal code sections or criminal statutes; our approach to affirmative defenses; and the strategies or techniques most favored by enforcement officers and prosecutors.

DUNCAN B. HOLLIS, Temple University – James E. Beasley School of Law
Email: duncan.hollis

Individuals, shadowy criminal organizations, and nation states all now have the capacity to harm modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk. And the threat is growing in scale and intensity with every passing day.

The conventional response to such cyberthreats is self-reliance. When self-reliance comes up short, states have turned to law for a solution. Cybercrime laws proscribe individuals from engaging in unwanted cyberactivities. Other international laws proscribe what states can (and cannot) do in terms of cyberwarfare. Both sets of rules work by attribution, targeting bad actors – whether criminals or states – to deter cyberthreats.

This Article challenges the sufficiency of existing cyber-law and security. Law cannot regulate the authors of cyberthreats because anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar do little to deter. They may even create new problems, when attackers and victims assume different rules apply to the same conduct.

Instead of regulating bad actors, this Article proposes states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist works by giving victims assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance they reasonably can. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them. An e-SOS system could help avoid harms from existing cyberthreats and deter others. Even when cyberthreats succeed, an e-SOS could make computer systems and networks more resilient to any harm they impose. At the same time, an e-SOS would compliment, rather than compete with, self-reliant measures and the existing legal proscriptions against cyberthreats.

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